The Bad Egg

The worst part of having staff comes when it’s time to fire someone. You want to make it as painless as possible, but you also need to be firm. You want to help the employee maintain some dignity, but you also need to safeguard against a potentially destructive reaction. You want to cut your losses, but you don’t want to cut corners that could land you on the wrong end of a lawsuit.

Patricia Gillen, an employment lawyer in Buffalo, N.Y., has seen clients make all sorts of well-meaning mistakes, starting with wavering on whether to fire someone at all, long after it’s clear the person will never fit into your firm’s structure. “You start to see someone’s true performance in 90 days to six months,” she says. “You pretty much know by then if they can do the work.”

When you begin to have doubts about an employee’s performance, it is crucial to start documenting all problems in e-mails or memos, she says. It is key to address problems immediately if you hope to turn a marginal employee around, says Gillen. But once it’s clear that the employee is not up to the task, it’s also important to act decisively for the good of the firm. “Good employees know when a bad egg is not performing,” Gillen says, “and it affects morale.”

The Next Step

But how you fire someone is just as important as when, says Chicago employment lawyer Roberta Lev­inson. Firms that lack an on-staff employment lawyer, she says, would be well-advised to consult one to help establish policies and procedures.

Stewart Manela, a Washington, D.C., employment law attorney, says a lot of his clients think they understand employment law, but they’re only half right. Manela, who co-chairs the Employment Rights and Responsibili­ties Committee of the ABA Labor Law Section, says many employers are under the erroneous impression that “employment at will” means someone can be fired at any time for any reason.

“That’s true except for the many laws restricting firing because of race, age, sex, making a wage claim, union organizing, whistle-blowing … the list goes on,” he says.

Whether an employee is really at-will is a threshold matter. Simply adding a notice to an employee handbook that it is not a contract may not be enough, says Manela.

He gives an example: Attorney Jones runs a law office with four employees. He doesn’t practice employment law but knows which firm in town has the best reputation for doing so. So he goes to the firm’s Web site and downloads its employee handbook. He doesn’t read it, but he gives a copy to each employee.

Later, Jones fires one of his employees but does not follow the procedures for warnings and documentation outlined in his handbook. If the employee sues, Manela says, a jury could find that the employee was entitled to rely on the representations in the handbook. Manela says he instructs his clients not to put anything in a handbook that they don’t believe their worst supervisor on his or her worst day will manage to do. Then, he says, be sure to follow your own written procedures.

Gillen recommends the following when conducting the actual firing conversation: Be direct, be honest, be brief and be polite. Don’t argue, don’t explain, don’t apologize. And ask someone to sit in on the conversation as a witness. Sim­ply tell the employee that the decision has been made, give the terms of the separation, hand over a final paycheck and ask him or her to leave.

If you’re concerned an employee might cause trouble, have someone block that person’s computer access and pack up his or her personal effects while the termination conversation is under way. Then escort the employee from the building. Finally, says Gillen, be sure to let other employees know you’re happy with their performance and that the firing has nothing to do with them.